STATE OF OKLAHOMA RETAIL COMPENDIUM OF LAW

Transcription

1 STATE OF OKLAHOMA RETAIL COMPENDIUM OF LAW Prepared by Jason Robertson Peirce Couch Hendrickson Baysinger & Green, LLP The Sun Building 907 S. Detroit, Suite 815 Tulsa, OK USLAW Retail Compendium of Law

2 Guide to Oklahoma Premise Liability Law Table of Contents Premise Liability 1. Oklahoma Court State Systems 3 A. State Systems 3 B. Federal System 4 2. Negligence 5 3. Invitee 5 A. Duty 6 B. Hidden Danger Defense 10 C. Open and Obvious Defense 10 D. Comparative Negligence Defense 10 E. Rain 10 F. Ice and Snow 11 G. Black Ice 11 H. Lightning 11 I. Negligence Per Se 12 J. Acts of Third Persons Licensee 16 A. Duty 16 B. Social Guests Trespasser 19 A. Duty 20 B. Attractive Nuisance 20 C. Swimming Pools, Ponds 23 OKLAHOMA LAW PREMISE LIABILITY P a g e 1

3 Jason Robertson PIERCE COUCH HENDRICKSON BAYSINGER & GREEN L.L.P. The Sun Building 907 S. Detroit, Suite 815 Tulsa, OK Jason Robertson is a Partner with Pierce Couch Hendrickson Baysinger & Green, L.L.P. His practice is focused on complex civil litigation matters in general liability, products liability, premise liability, civil rights, construction litigation, police misconduct, medical malpractice, municipal liability, professional liability, pharmacy liability, nursing home abuse, auto and trucking accidents, and bad faith. He has prosecuted, defended, and tried numerous cases both in state and federal court throughout Oklahoma, Texas, Kansas, and Arkansas. His clients include national and international retailers, movie theaters, hotels and resorts, restaurants, convenience store chains, office and industrial parks, and managers of commercial properties. OKLAHOMA LAW PREMISE LIABILITY P a g e 2

4 1. The Oklahoma State Court System A. The State System The Oklahoma Court System is made up of the Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals, and 77 District Courts. Administrative services for the Court System are provided by the Administrative Office of the Courts. The trial-level court in Oklahoma is the District Court System. Each county in the state has a District Court that hears all manners of civil and criminal disputes. Virtually all personal injury actions filed in state court are filed at the District Court level. District Court judges are elected officials and serve 4-year terms. Unlike most states, Oklahoma has two courts of last resort. The Supreme Court determines all issues of a civil nature, and the Oklahoma Court of Criminal Appeals decides all criminal matters. The Court of Civil Appeals is responsible for the majority of appellate decisions. These opinions may be released for publication either by the Court of Civil Appeals or by the Supreme Court. When the opinions are released for publication by the Supreme Court, they have precedential value. The Court of Civil Appeals is comprised of four divisions, each composed of three Judges. The Oklahoma Supreme Court is Oklahoma s court of last resort in all civil matters and all matters concerning the Oklahoma Constitution. It consists of nine justices appointed by the governor to serve life terms, but unlike U.S. Supreme Court justices, they are subject to an election every six years in which voters choose whether or not to retain them. Appeals may be made to the Supreme Court from the District Court, Workers Compensation Court, Court of Tax Review, and state agencies such as the Department of Public Safety, Oklahoma Tax Commission, Oklahoma Corporation Commission and the Department of Human Services. Many of these appeals are directed by the Supreme Court to one of four divisions of the Court of Civil Appeals. Most cases reviewed in the Supreme Court are from the Court of Civil Appeals. These cases come before the Supreme Court on petitions for certiorari review. Certiorari allows the Supreme Court to bring the record up from the Court of Civil Appeals and to review the Court of Civil Appeals decision. A review of an opinion of the Court of Civil Appeals in the Supreme Court on writ of certiorari is a matter of sound judicial OKLAHOMA LAW PREMISE LIABILITY P a g e 3

5 discretion, and will be granted only when there are special and important reasons and if a majority of the Justices direct that certiorari be granted. Certiorari may be granted when the Court of Civil Appeals has decided a question of substance not previously determined by the Oklahoma Supreme Court or the United States Supreme Court, the Court of Civil Appeals divisions have issued conflicting opinions, or when the Court of Civil Appeals decision is a substantial departure from the usual course of judicial proceedings. When new first impression issues, or important issues of law, or matters of great public interest are at stake, the Supreme Court may retain a case directly from the trial court. The procedural rules in Oklahoma are controlled by Statute and the Oklahoma Court Rules. These rules are very similar to federal court practice. B. Oklahoma Federal Courts There are three judicial districts in the state. The Eastern District is located in Muskogee and encompasses the following counties: Adair, Atoka, Bryan, Carter, Cherokee, Choctaw, Coal, Haskell, Hughes, Johnston, Latimer, Le Flore, Love, Marshall, McCurtain, McIntosh, Murray, Muskogee, Okfuskee, Okmulgee, Pittsburg, Pontotoc, Pushmataha, Seminole, Sequoyah, and Wagoner. The Northern District is located in Tulsa and encompasses the following counties: Craig, Creek, Delaware, Mayes, Nowata, Osage, Ottawa, Pawnee, Rogers, Tulsa, and Washington. The Western District is located in Oklahoma City and encompasses the following counties: Alfalfa, Beaver, Beckham, Blaine, Caddo, Canadian, Cimarron, Cleveland, Comanche, Cotton, Custer, Dewey, Ellis, Garfield, Garvin, Grady, Grant, Greer, Harmon, Harper, Jackson, Jefferson, Kay, Kingfisher, Kiowa, Lincoln, Logan, McClain, Major, Noble, Oklahoma, Payne, Pottawatomie, Roger Mills, Stephens, Texas, Tillman, Washita, Woods, and Woodward. 2. Negligence OKLAHOMA LAW PREMISE LIABILITY P a g e 4

6 Since statehood in Oklahoma, the courts have been steadfast in following the common law regime in premises liability cases. A land possessor s liability for harm occurring upon the premises varies with the status of the entrant claiming the injury. Negligence is applied within the restrictive framework of relational, status based duties. Pickens v. Tulsa Metropolitan Ministry, 951 P.2d 1079 (Okla. 1997). "Negligence" is the failure to exercise ordinary care to avoid injury to another's person or property. "Ordinary care" is the care which a reasonably careful person would use under the same or similar circumstances. The law does not say how a reasonably careful person would act under those circumstances. OUJI Invitee An invitee is one who is on the premises at the express or implied invitation of the owner/occupant thereof for some purpose in which the owner/ occupant has some interest of business or commercial significance, which business may be of mutual interest, or in connection with the owner's/ occupant's business. OUJI Instruction No INVITEE- DEFINED An invitee is one who comes upon the premises of another under the authority of an express or implied invitation. Where a person comes onto the premises of another and there is a common interest or mutual advantage, an invitation is inferred and the term business invitee is often used. McKinney v. Harrington, 855 P.2d 602, 604 (Okla. 1993). Examples Some common invitor / invitee relationships are bank / bank customer, supermarket / shopper, hotel / guest, gas station /customer, and department store / patron. OKLAHOMA LAW PREMISE LIABILITY P a g e 5

7 Roofing company s employee who was hired to repair homeowner s roof was invitee for purposes ofhis negligence claim against homeowner. McKinney v. Harrington, 855 P.2d 602 (Okla. 1993). A. Duty An invitor owes an invitee the duty of reasonable care. Brown v Nicholson, 935 P.2d 319, 321 (Okla. 1997). The invitor owes no duty to warn an invitee of any danger which is open and obvious, or which should have been discovered in the exercise of ordinary care. Hatcher v. Super C Mart, 24 P.3d 377, 381 (Okla. Civ. App. 2001). The duty owed by an invitor to a business invitee is parallel to that owed an invitee. An invitor owes a business invitee the duty of reasonable care to prevent injury, but does not owe a duty to protect against open and obvious dangers. Williams v. Tulsa Motels, 958 P.2d 1282, 1284 (Okla. 1998). The property owner had a duty to invitees to use reasonable care to maintain the sidewalk. Reasonable minds could have disagreed on whether the expansion joint constituted an open and obvious hazard. Reasonable minds could have differed on whether the expansion joint constituted a hidden danger based upon a deceptively innocent appearance. Plaintiff was not required to submit evidence in opposition to summary judgment proving the expansion joint in question was different from expansion joints in other public places. The property owner presented no evidence to suggest the expansion joint in question was a standard size or within acceptable limits in the construction industry. Whether the condition was an open and obvious condition was for the jury. Summary judgment was improperly granted in favor of the property owner. However, summary judgment was properly granted for the restaurant because it did not OKLAHOMA LAW PREMISE LIABILITY P a g e 6

8 own the property and had no duty or responsibility for maintaining the sidewalk. West v. Spencer, 2010 OK CIV APP 97 (Okla. Ct. App. 2010) Oklahoma recognizes a nondelegable duty to maintain one's premises in a reasonably safe condition to protect invitees. Thomas v. E-Z Mart Stores, Inc., 2004 OK 82, P12, 102 P.3d 133, 137. This nondelegable duty applies primarily where an invitor/property owner attempts to delegate his duty to an independent contractor: [A] landowner's duty may not be delegated in the sense that an invitor may be held liable for certain acts of its independent contractors. Allocation of the risk is placed on the invitor who is in control of its premises, including the injury-causing condition thereon, when the invitor either knew or should have known of its existence. West v. Spencer, 2010 OK CIV APP 97, P12 (Okla. Ct. App. 2010) Where a person was injured in a fall in a store, the condition causing the fall must have been either the negligence of the owner / operator, or must have existed for a sufficient duration of time, such that the owner / operator had actual or constructive notice and time to remove it in exercise of ordinary care. Harper v. Levine~, Inc., 435 P.2d 127, 130 (Okla. 1967). Burden of proof is on plaintiff in slip and fall case to show that item causing fall was negligently left there by storekeeper or some employee or had been there for sufficient time after the latter had actual or constructive knowledge thereof to have removed it in exercise of ordinary care. Alternatively, plaintiff may show that storekeeper negligently failed to inspect or maintain premises, or did not use ordinary care in policing premises. Hodge v. Morris, 945 P.2d 1047 (Okla. Civ. App. 1997). OKLAHOMA LAW PREMISE LIABILITY P a g e 7

9 Club not found liable for injuries and death of man who slipped and fell in water on step when he was leaving the club, as water from an air conditioner was an open and obvious danger and club owner had no duty to warn. Esther v. Wiemer, 859 P.2d 1140 (Okla. App. 1993). Oklahoma recognizes a basic rule that possession and control of real property is the fundamental requirement for ascribing liability for injury suffered thereon, and that once an owner parts with possession and control of the premises, the responsibility and liability, if any, for injury suffered on the property falls on the new owner. See Shipley v. Bankers Life and Casualty Company, 1962 OK 264, 377 P.2d 571,(vendor who had surrendered possession, management and control of apartment hotel for six years to buyer under contract for sale was not liable for tenant's injury sustained as result of defect in elevator that existed when contract was entered into). See also Scott v. Archon Group, L.P., 2008 OK 45, P25 (Okla. 2008). Although the Oklahoma Landlord Tenant Act, specifically Okla. Stat. tit (A)(2) (2001), imposes a duty upon the landlord to make all repairs and do whatever is necessary to put and keep the tenant's dwelling unit and premises in a fit and habitable condition, it does not create a tort remedy for personal injures sustained as a result of a landlord's breach of those duties. It merely regulates the contractual rights and obligations of the residential parties and does not enlarge the landlord's duty under common law. Okla.Stat. tit. 41, 103(A) & 121. Miller v. David Grace, Inc., 2009 OK 49 (Okla. 2009). The Oklahoma Supreme Court supplanted the caveat emptor doctrine of landlord tort immunity. In its place, it imposed a general duty of care upon landlords to maintain the leased premises, including areas under the tenant's exclusive control or use, in a reasonably safe condition. This duty requires a landlord to act reasonably when the landlord knew or reasonably should have OKLAHOMA LAW PREMISE LIABILITY P a g e 8

10 known of the defective condition and had a reasonable opportunity to make repairs. Miller v. David Grace, Inc., 2009 OK 49 (Okla. 2009). Safety features such as doors and window locks, alarm devices, and balcony railings directly relate to security. Leasing a premise that is inadequately secured due to ineffective or defective materials creates a duty on the part of the landlord to provide repairs or modifications upon notification of the defect by the tenant. This duty arises from the landlord-tenant contract and from the implication that the landlord is to provide services under the contract in a diligent manner. Miller v. David Grace, Inc., 2009 OK 49 (Okla. 2009). B. Hidden Danger Defense A hidden danger is a dangerous condition that the invitee [licensee] does not actually know about and would not be expected to observe in the exercise of ordinary care. A hidden danger may be totally or partially obscured from sight but it need not be if the circumstances are such that the invitee [licensee] would not be expected to observe the dangerous condition in the exercise of ordinary care. OUJI C. Open and Obvious Defense The [owner/occupant] has no duty to protect invitees [licensees] from or warn them of any dangerous condition that is open and obvious, as such a danger is ordinarily readily observable by invitees [licensees]. OUJI D. Comparative Negligence Defense Under Oklahoma law comparative negligence is an affirmative defense and the Defendant must show by the greater weight of the evidence that the Plaintiff was negligent and his or her negligence was a direct cause of his or her injury. OKLAHOMA LAW PREMISE LIABILITY P a g e 9

11 E. Rain Storeowner was not held liable for injuries to woman who slipped and fell on entrance floor that had become damp and wet from rain earlier in the morning. No duty was breached to store customer unless employee of store caused the dangerous condition or the dangerous condition existed long before the owner was able to discover and remove the dangerous condition. Safeway Stores, Inc. v. Criner, 380 P.2d 712, 716 (Okla. 1963). F. Ice and Snow Naturally occurring or natural accumulation of ice and snow creates no liability. Natural may not mean directed by gutters, eaves, downspouts, etc. Buckv. Del City Apartments, Inc., 431 P.2d 360 (Okla. 1967). Where there is no act on the part of the owner or occupant of the premises creating a greater hazard than that brought about by natural causes, such as the forming of ice and the falling of snow, all persons on the property are expected to assume the burden of protecting themselves from the naturally occurring hazards. Dover v. Braum, Inc. 111 P.3d 243 (Okla. 2005). G. Black Ice A business owner may be liable for a fall on black ice that occurred on his premises. If the business owner has sufficient notice of the naturally occurring black ice and resulting hazard, a jury may decide that the property owner had a duty to warn the invitee of the hazardous condition since it was not open and obvious. Brown v. Alliance Real Estate Group, 1999 OK 7. H. Lightning Lightning is a universally known danger created by the elements. Golf Course has no duty to warn its invitees of the patent danger of lightning or to reconstruct or alter its premises to protect OKLAHOMA LAW PREMISE LIABILITY P a g e 10

12 against lightning. Plantiffs did not allege and offered no proof Golf Course created a greater hazard than that brought about by natural causes. Therefore, Golf Course is entitled to judgment as a matter of law. Grace v. City of Oklahoma City, 1997 OK CIV APP 90, 3 (Okla. Civ. App. 1997). I. Negligence Per Se In addition to the duty to exercise ordinary care there are also duties imposed by statutes and ordinances. If a person violates a statute or ordinance, and the violation was the direct cause of the injury, then such a violation in and of itself would create negligence. OKLAHOMA UNIFORM JURY INSTRUCTION The violation of an ordinance is to be deemed negligence per se if the injury complained of(1) was caused by the ordinance s violation, (2) was of the type intended to be prevented by the ordinance, and (3) the injured party was one of the class meant to be protected by the ordinance. Boyles v. Oklahoma Natural Gas Co., 619 P.2d 613 (Okla. 1980). A hotel s failure to equip certain stairways with handrails constitutes negligence per se with respect to an injury sustained in fall on the stairway. Eddy v. Oklahoma Hotel Bldg. Co., 228 F.2d 106 (10th Cir. 1955). J. Acts of Third Persons An invitor has no duty to protect an invitee from the criminal acts of third persons, unless the invitor knows or has reason to know that the third party s acts are occurring or are about to occur; in which case, the invitor would have the duty to warn or protect the invitee from the third-party s criminal acts. Taylor v. Hynson, 856 P.2d 278 (Okla. 1993). OKLAHOMA LAW PREMISE LIABILITY P a g e 11

13 The open and obvious limitation of invitors duty does not apply to acts of third persons. Premises liability cases involving criminal attacks focus on the invitor s knowledge of criminal activity; they do not incorporate the open and obvious danger analysis found in physical-defect cases. Therrien v. Target Corp., 2007 WL , C.A. 10 (Okla. 2007). Dance Club was held liable to woman who was hit by flying beer bottle while she was on the dance floor. It was reasonably foreseeable that selling beer in glass bottles to patrons who had a known propensity for violence could result in such an accident. McClure v. GroupK Enters., Inc., 977 P.2d 1148, 1151 (Okla. Civ. App. 1999). One morning plaintiff arrived for work and parked in defendant's parking garage. She was kidnapped at knife point and raped. Plaintiff sued defendant for common law negligence. The trial court granted summary judgment to defendant. The trial court rejected plaintiff's argument that defendant could have reasonably anticipate criminal activity and afforded reasonable protection against it. The Court of Civil Appeals affirmed, holding that Oklahoma law did not impose that duty on a landowner. On review, the Supreme Court of Oklahoma held that defendant's past experience with a high rate of crime gave rise to a duty to provide precautions against criminal activity in its parking garage. There was a question of fact as to whether the precautions defendant undertook were adequate to provide reasonable protection to its business invitees. Therefore, summary judgment was improper and the issue of a breach of duty was for the trier of fact. Bray v. St. John Health Sys., 2008 OK 51 (Okla. 2008). Duty of a business owner to members of the public for the acts of third persons or animals. It provides: possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for OKLAHOMA LAW PREMISE LIABILITY P a g e 12

14 physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable visitors to avoid the harm, or otherwise to protect them against it. Bray v. St. John Health Sys., 2008 OK 51, P7 (Okla. 2008). Fast-Food restaurant not held liable for assault on customer waiting in line to place an order. The short amount of time between verbal exchange and attack did not allow restaurant employee to prevent an attack. Shelkett By and Through Shelkett v. Hardee~Food Systems, Inc., 848 P.2d 63, 67 (Okla. App. 1993). Plaintiff mother, individually and on behalf of her five-year-old son, sued defendant retailer based on a premises liability theory of negligence after the child was sexually assaulted inside the men's restroom at the store while his aunt waited outside the door. The retailer moved for summary judgment. Following a hearing, the District Court of Lincoln County (Oklahoma) granted summary judgment to the retailer. The mother appealed. The perpetrator was not an employee of the retailer, but he was apparently on the premises for the purpose of soliciting donations for a church. The mother attached to her response a statement from the retailer's former personnel manager indicating that she placed the perpetrator's church on a list of groups that were not permitted at the store because of behavior issues. This information was allegedly transmitted to her replacement. The court concluded that summary judgment was improper. Whether the perpetrator's criminal act was an unforeseeable intervening cause that shielded the retailer from liability for any negligence it might have committed was an issue that could not be resolved on summary judgment because foreseeability remained a controverted issue of fact. The OKLAHOMA LAW PREMISE LIABILITY P a g e 13

15 mother was not required to show that the retailer was specifically aware of, or could have foreseen, the exact crime or the specific location on its premises where patrons might be injured by the tortious acts of third persons. Further, any contributory negligence on the part of the aunt was a question of fact for the jury. Lewis v. Wal-Mart Stores E., L.P., 2009 OK CIV APP 81 (Okla. Ct. App. 2009). A business owner is not an insurer against criminal attack. Although business owners have no general duty to protect others from the criminal activities of third persons, this rule is not absolute. Business owners have a duty to implement reasonable measures to protect their patrons from criminal acts when those acts are foreseeable. Lewis v. Wal-Mart Stores E., L.P., 2009 OK CIV APP 81 (Okla. Ct. App. 2009). To determine the foreseeability issue, the Oklahoma Supreme Court has adopted the approach of the Restatement (Second) of Torts 344 (1965). Bray at 12, 187 P.3d at 724. Section 344 provides, at comment f: Duty to police premises. Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection. Restatement (Second) of Torts 344 cmt. f (1965)(emphasis added). 4. Licensee Definition OKLAHOMA LAW PREMISE LIABILITY P a g e 14

16 A licensee is one who is on the premises of another by tolerance/permission, express or implied of the owner/occupant thereof for purposes in which the owner/occupant has no business or commercial interest. OUIJI Instruction No LICENSEE- DEFINED A licensee is one who goes onto the property of another for his own benefit with the implied or express permission of the landowner. Brown v. Nichols, 935 P.2d 319, 321 (Okla. 1997). Examples A holder of a permissive easement, a hunter, or any other person who has been given express permission to come onto the owner s land is a licensee. A. Duty The owner/occupant of premises has a duty to a licensee, whose presence on the premises is known or reasonably should be known, not to injure him/her 1) by a willful or wanton act, or 2) by needlessly exposing him/her to danger by a failure to warn of any hidden danger on the premises that is known to the owner/occupant and that the licensee is not likely to discover by himself/herself. This duty is limited to any hidden danger that the owner/occupant actually knows about, and the owner/occupant has no duty to inspect the premises for hidden dangers. OUIJI Instruction No DUTY TO LICENSEE TO MAINTAIN- PREMISES- GENERALLY The landowner has a duty to exercise reasonable care to disclose to the licensee the existence of dangerous conditions known to the owner that are unlikely to be discovered by the licensee; this duty extends to conditions and defects that are hidden dangers, traps, snares, and the like. Thomas v. E-Z Mart Stores, Inc., 102 P.3d 133 (Okla. 2004); Pickens v. Tulsa Metropolitan Ministry, 951 P.2d 1079, 1083 (Okla. 1997). This duty is limited to any hidden dangers that the OKLAHOMA LAW PREMISE LIABILITY P a g e 15

17 owner actually knows about, and the owner has no duty to inspect the premises for hidden dangers. Sagona v. Sun Company, Inc., 57 P.3d 879 (Okla. Civ. App. 2002). Hotel maid held to be a licensee rather than a trespasser when she went to get some ice to cool her face, as was customary for the maids to do; therefore, hotel owner owed her a duty to exercise ordinary care to avoid injuring her. Oklahoma Biltmore v. Williams, 79 P.2d 202 (Okla. 1938). Plaintiff filed suit against Defendant or injuries sustained as a result of falling in a tunnel hallway which leads from Saint Anthony Hospital, where she worked, to the employee parking garage. At the time of Plaintiff s fall, Defendant s employee was working in the tunnel stripping and waxing the floor. Plaintiff claimed that she fell because of Defendant s failure to adequately warn her of the dangerous condition existing on the tunnel floor. Defendant filed a motion for summary judgment maintaining it took reasonable care in warning invitees, including Plaintiff, of the potentially dangerous condition on the floor. The trial court granted Defendant s motion. Plaintiff appealed and the Court of Civil Appeals, Division I, affirmed the summary judgment finding Defendant satisfied its duty to warn Martin of a potentially dangerous condition on the floor. The Oklahoma Supreme Court disagreed and found that the condition presented by the floor was in the nature of a hidden danger and not one that was open and obvious. As a result, the employer had a duty to warn the employee of the potentially dangerous condition. A genuine issue of material fact as to the adequacy of the warning provided by the employer existed as a rational fact finder could have concluded that the janitor obstructed the employee's passage and forced her to step around him. As she placed her foot on the floor between the rubber strips placed for passage, she fell. Thus, reasonable minds could have differed as to whether the OKLAHOMA LAW PREMISE LIABILITY P a g e 16

18 warnings were adequate to apprise the employee of the potentially dangerous condition. In addition, the fact that three people fell within a span of 30 to 40 minutes that evening lended support to the notion that either the warnings were confusing or that the condition was so dangerous that the public could not avoid the harm even after receiving a warning. As such, the trial court erred by granting summary judgment in favor of the employer. Martin v. Aramark Servs., Inc., 2004 OK 38 (Okla. 2004). B. Social Guests Where child was at his friend s house playing and was injured when shot in the eye with BB gun, the court held that a social guest is more correctly labeled a licensee and is owed a duty of ordinary care. Vance By and Through Vance v. Thomas, 716 P.2d 710 (Okla. Civ. App. 1986). A social guest in the home of a host was found to be a licensee and there was owed the duty to exercise ordinary care to- avoid injuring him. Simon v. Rizek, 296 F. Supp. 602 (W.D. Okla. 1962). The companies managed the apartment complex where the visitor was injured. She was rendered a quadriplegic after diving into the apartment pool and striking her head. She sued for negligence. The trial court granted the companies summary judgment. The appellate court affirmed, finding undisputed proof of the open and obvious condition of the pool at the time of the incident. On review, the court reversed. The court found that a fact issue existed regarding whether the danger of diving head first into the pool was an open and obvious danger. Despite the visitor's admissions that she understood the dangers of diving into the waters at an unknown depth, she also indicated that the pool's lighting made her think it would be safe to do a shallowwater dive. The visitor's perception was linked to the pool's lighting, which created shadows. Her OKLAHOMA LAW PREMISE LIABILITY P a g e 17

19 rescuer also indicated that he could not determine the depth of the water until he entered the pool. The characteristics of the pool as a hidden or open hazard presented an issue of fact, and thus summary judgment was inappropriate. Sholer v. ERC Mgmt. Group, LLC, 2011 OK 24 (Okla. 2011). 5. Trespasser A trespasser is one who is on another s land without an implied invitation and against the owner s wishes. Lohrenz v. Lane, 787 P.2d 1274, 1277 (Okla. 1990). A. Duty To a trespasser, a landowner only owes the duty not to injure him willfully or wantonly. Pickens v. Tulsa Metropolitan Ministry, 951 P.2d 1079, 1083 (Okla. 1997). Gross negligence is synonymous with a wanton act; therefore, an act or omission involving reckless indifference to the safety of a reasonably anticipated technical trespasser, such as a child of tender years, may be wanton. Lohrenz v. Lane, 787 P.2d 1274, 1278 (Okla. 1990). Trespass defense applied to worker s personal injury action against owner based on accident that occurred while worker was taking down telegraph poles on property adjacent to his employer s; owner s mere knowledge of remodeling project on adjacent property was not implied invitation to enter its own property and remove poles. Rowell v. El Reno Junior College Foundation, Inc., 910 P.2d 962 (Okla. 1993). B. Attractive Nuisance ELEMENTS OF LIABILITY OKLAHOMA LAW PREMISE LIABILITY P a g e 18

20 In some circumstances, an owner/occupant of premises may have a duty to exercise ordinary care to protect children who trespass on his/her/its premises from injury. If a jury finds that Plaintiff was injured while trespassing on Defendant's land, then in order for Plaintiff to recover the jury must find all of the following to have been established: 1. The injury was directly caused by [describe the artificial condition] maintained by Defendant on the premises; 2. The condition was unusually attractive to children; 3. Plaintiff was attracted onto the premises by the condition; 4. The condition created an unreasonable risk of injury to children, which Defendant knew, or, as a reasonably careful person, should have known; 5. Plaintiff lacked the ability to appreciate or realize the risk; and 6. Defendant, failed to exercise ordinary care to protect Plaintiff from injury. OUIJI Instruction No DUTY TO CHILDREN - ATTRACTIVE NUISANCE A landowner is generally under no duty to trespassers other than to avoid willfully, wantonly or intentionally harming them. The attractive nuisance doctrine is an exception to this rule. It involves balancing the interests between that of society in protecting its children and the right of landowners and proprietors to make use of their property in a lawful business. Knowles v. Tripledee Drilling Co., Inc., 771 P.2d 208 (Okla. 1989). In making a determination as to whether the attractive nuisance doctrine applies to a specific fact situation the following factors must be considered: 1) how uncommon the instrumentality is; OKLAHOMA LAW PREMISE LIABILITY P a g e 19

21 2) how unusually dangerous the instrumentality is; 3) how attractive the instrumentality is; 4) the probability of children coming into contact with the instrumentality; 5) whether the probability is so localized that harm can be avoided, or whether the probability is such that there is no indication of when and where the contact will occur; 6) how feasible it is to avoid danger of harm; 7) how great is the burden of avoiding the harm; 8) the effect of placing such a duty on a party; and 9) whether the child has an apparent intelligence and consciousness of the circumstances such that she/he could reasonably appreciate the danger or the lack of right to tamper with the instrumentality so that the duty to protect should not be imposed. KNOWLES v. TRIPLEDEE DRILLING CO., 1989 OK 40 (Okla. 1989) The question of whether the doctrine of attractive nuisance applies is a question of fact for the jury. Keck v. Woodring, 201 Okla. 665, 208 P.2d 1133 (Okla. 1948); Empire Gas & Fuel Co. v. Powell, 150 Okla. 39, 300 P. 788 (Okla. 1931). Questions of fact as to whether the instrumentality that caused the injury was attractive to children, accessible to children or adequately warned children of danger are also jury questions. Stanolind Oil & Gas Co. v. Jamison, 204 Okla. 93, 227 P.2d 404 (Okla. 1950). More specifically, children under the age of 7 years and, in the absence of evidence of capacity, those children between 7 and 14 years of age have been presumed to be incapable of contributory negligence resulting in a greater duty of care being owed to these children by a landowner. The greater duty of care to trespassing children is further supported by this Court's decision that these children are capable of no more than a OKLAHOMA LAW PREMISE LIABILITY P a g e 20

22 technical trespass. The burden of proving the nature of the trespass or capacity of the child as it relates to the defense of contributory negligence falls on the defendant and is, ultimately, a question for the jury to consider. Cheek, 137 P. at 732. In every Oklahoma decision we have found regarding the attractive nuisance doctrine, it has been clearly stated that it is for the protection of children of tender age. Distinctions are made between children under the age of 7 years and between the ages of 7 and 14 years. Whether a child over the age of 14 years has sufficient capacity to understand the danger and ability to take care of himself under the circumstances may properly be a jury question. We decline to extend the doctrine of attractive nuisance to adults, regardless of their mental capacity. We find no compelling societal interest to do so. WEVER v. STATE ex rel. DEPARTMENT OF HUMAN SERVS., 1990 OK CIV APP 39 (Okla. Ct. App. 1990). C. Swimming Pool, Ponds Where a city ordinance required property owner to construct a fence to meet certain requirements to protect small children from gaining access to swimming pool, and a property owner failed to construct such a protective fence, the owner was held liable for the drowning death of a small child who gained access to the owner s pool through the fence. Death of Lofton V. Green, 905 P.2d 790 (Okla. 1995). County building codes that required the fencing of swimming pools held not to require property owner to fence livestock pond in rural area, and, as such, could not support an action for liability against landowner for two year-old child s injuries sustained by falling into pond. Lohrenz v. Lane, 787 P.2d 1274, 1277 (Okla. 1990). OKLAHOMA LAW PREMISE LIABILITY P a g e 21

23 Pierce Couch Hendrickson Baysinger & Green, L.L.P., is one of the oldest and most respected insurance defense litigation and corporate law firms in Oklahoma. With offices in both Oklahoma City and Tulsa, we have been meeting the trial and transactional needs of national, international, and local businesses and insurance companies for more than eight decades. We opened our doors in 1923 to provide litigation defense for companies faced with unjust workers compensation claims and have expanded our practice to include all aspects of insurance defense, insurance coverage, and business representation. We are proud to be one of Oklahoma s most respected law firms. Practicing Law, Building Relationships Our firm offers efficient and effective legal advice and representation in each of our practice areas. Building relationships over the past century and the next is the key to our success. Many of our clients have worked with our firm for decades. Maintaining long-term relationships with our clients is a hallmark of PCHB&G. Our ability to provide quality representation to privatelyowned businesses and public corporations gives us knowledge and versatility unequalled in Oklahoma. Experience to Find the Right Resolution We draw on our experience to find resolutions that are right for today s needs and legal interpretations. Legal disputes are often an unavoidable aspect of our clients businesses, but costly litigation is not necessarily the only solution. Our attorneys have extensive experience providing resolutions in cases involving civil and government liability, environmental and toxic torts, products liability, and medical malpractice and nursing home litigation. Whatever legal problem your business is facing, you can rely on our experience and reputation. OKLAHOMA LAW PREMISE LIABILITY P a g e 22